THIS MASTER SERVICE AGREEMENT (“Agreement”) is made this _______ of ______, 2023 (“Effective Date”) by and between IT Practice, Inc. (“Master Service Provider” or “MSP”), 5621-115 Departure Drive, Raleigh, NC 27616 and (Client Info) (“Client”).
SCOPE OF AGREEMENT. This Agreement serves as a master agreement and applies to Client’s purchases from MSP, of services (“Services”), as well as services of its contracted subcontractors and licenses for software, hardware, support and maintenance services, and/or subscription services (collectively, “Product”). Client hereby engages and retains MSP to render Services as more particularly set forth in the “Statement of Work” or “SOW” attached hereto and incorporated herein by reference or subsequent Statements of Work. No Product or Services will be provided under this Agreement alone but may require the execution of a written or electronic SOW form, or other mutually acceptable order documentation, which contains terms relating to this Agreement, each of which must be executed by both parties and, upon such execution, is deemed incorporated in this Agreement for all purposes. The parties hereby further agree that the parties may execute multiple Orders and Statements of Work under this Agreement. In the event of any conflict between the terms of the Statement of Work and those of this Agreement, the terms of the Statement of Work will prevail over this Agreement.
2.1 System. For the purposes of this Agreement, “System” means, collectively, any computer network, computer system, peripheral or device installed, maintained, monitored, or operated by us pursuant to a SOW. To avoid a delay or negative impact on our provision of the Services, during the term of each SOW you agree to refrain from modifying or moving the System, or installing software on the System, unless we expressly authorize such activity.
2.2 Maintenance; Updates. If patches and other software-related maintenance updates (“Updates”) are provided under a SOW, we will install the Updates only if we have determined, in our reasonable discretion, that the Updates will be compatible with the configuration of the System and materially beneficial to the features or functionality of the affected software or hardware. We will not be responsible for any downtime or losses arising from or related to the installation or use of any Update, provided that the Update was installed in accordance with the manufacturer’s or applicable vendor’s instructions.
2.3 Third-Party Service Providers. “Third Party Service Providers” means services provided by other than the MSP in fulfillment of the SOW requirements whose terms and conditions MSP and Client may be legally bound. We do not own certain Third-Party Products and the use thereof is subject to certain rights and limitations of which we need to inform you. Your right to use the Third-Party Products is subject to your Agreement with us, and to your understanding of, compliance with and consent to the terms and conditions of the Third-Party agreements, which we do not have authority to very, alter or amend. Therefore, MSP may utilize a Third-Party Service Provider in its discretion to provide the Services in accordance with the Agreement. MSP shall not, however, subcontract any Services to a third party without the prior written consent of Client. If Client so consents, MSP will use reasonable efforts to assign, transfer and facilitate all warranties (if any) for the Third-Party Service Provider to Client, but will have no liability whatsoever for the quality, functionality or operability of any Third-Party Products or Services, and MSP will not be held liable as an insurer or guarantor of the performance, downtime of usefulness of any Third-Party Provider. The Third-Party Provider may require the MSP to sign a contract with the Third-Party Provider for its services (“Third-Party Contract”) and the terms of the Third-Party Contract may require certain conditions and requirements upon Client. The terms and conditions of any such Third-Party Contract(s) will be provided to the Client or attached to the Scope of Work which identifies the Third-Party Service Provider and the associated terms and conditions. Client hereby agrees to review all Third-Party Terms and Conditions, and consents to those Third-Party Terms and Conditions which Client has consented MSP to contract upon its behalf. Third-Party Provider terms and conditions link of PDF can be found at our website and/or SOW as applicable.
2.4 Third Party Product Vendors- “Third Party Product Vendors” means machinery and equipment inclusive of component parts purchased from vendors in fulfillment of the SOW requirements.
2.5 Third Party Support. If, in MSP’s discretion, a hardware or software issue requires vendor or OEM support, we may contact the vendor or OEM (as applicable) on your behalf and pass through to you, without markup, all fees and costs incurred in that process. If such fees or costs are anticipated in advance or exceed $200, we will obtain your permission before incurring such expenses on your behalf unless exigent circumstances require otherwise.
2.6 Subcontractors. “Subcontractors” means third party to whom MSP contracts to provide specified services to complete the services indicated in the applicable SOW.
2.7 Advice; Instructions. From time to time, we may provide you with specific advice and directions related to our provision of the Services or the maintenance or administration of the System. (For example, our advice or directions may include increasing the System’s server or hard drive capacity or replacing obsolete equipment.) You agree to promptly follow and implement any directions we provide to you related to the Services which, depending on the situation, may require you to make additional purchases or investments in the System or the environment in which the System is maintained, at your sole cost. We will not be responsible for any problems or issues (such as System downtime or security-related issues) caused by your failure to promptly follow our advice or directions. If your failure to follow or implement our advice renders part or all of the Services economically or technically unreasonable to provide in our discretion, then we may terminate the applicable SOW for cause by providing notice of termination to you. Unless specifically and expressly stated in a SOW, any services required to remediate issues caused by your failure to follow MSP’s advice or directions, or your unauthorized modification of the System, as well as any services required to bring the System up to or maintain the Minimum Requirements, are not covered under any SOW and will be out-of-scope.
TERM AND TERMINATION. This Agreement will begin on the Effective Date and will continue until each Order expires or is terminated. MSP may: (a) terminate a specific Order if Client fails to pay any applicable fees due for that Order within 30 days after receipt of written notice from MSP of non-payment; and/or (b) terminate this Agreement or an Order if Client commits any other material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice from MSP. If an Order for Services is terminated, Client will promptly pay MSP for Services rendered, and expenses incurred through the termination date. Client may (a) terminate this Agreement or an Order if MSP commits any other material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice from Client.
PAYMENT. Client will pay MSP all fees due upon receipt of an invoice specifying the amounts due (“Fees”). All Fees payable under this Agreement are exclusive of sales, use, excise, and any other applicable transaction taxes, which Client will pay (excluding taxes based upon the net income of MSP). If payment is not received on or before any invoice due date, interest shall begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or at the rate of one and one-half percent (1.5%) (or any other interest rate in accordance with the state’s law) per month from the date due until paid in full. Client shall pay all expenses, including actual attorneys’ fees, incurred by MSP or its representatives in enforcing its rights under this Agreement, provided that MSP is successful on the merits. Client’s obligation to pay undisputed amounts due for Services and MSP’s right to all such amounts are absolute and unconditional. Client is not entitled to setoff of such amounts. All Fees will be detailed in an Order. Unless otherwise stated in a SOW, Client agrees to pay or reimburse MSP for all actual, necessary, and reasonable expenses incurred by MSP in performance of such SOW, which are capable of verification by receipt. MSP will submit invoices to Client for such fees and expenses either upon completion of the Services, or at stated intervals, in accordance with the applicable Statement of Work. 5. CONFIDENTIALITY AND NON-DISCLOSURE.
5.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), in any format whether oral, written, electronic, or other, that is designated as confidential or 9/18/2023 Ed. 3 that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
5.2 Confidential Information of Client shall include any personally identifiable information or protected health information of Client’s employees, Client’s customers, and Client Data. Client acknowledges and agrees that this Agreement does not constitute a Business Associates Agreement (“BAA”) as that term is defined in the Health Insurance Portability and Accountability Act (HIPAA; Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996 and as amended), and that the requirement for any such agreement in addition to the this Agreement may be necessary to provide the Services hereunder. Client shall be solely responsible for the consequences, if any, of moving forward with the Services hereunder without such a BAA and shall be the sole judge of the necessity for a BAA in addition to this Agreement. Furthermore, Client hereby agrees to defend, indemnify and hold harmless the MSP and any affiliated company, and their respective present and former shareholders, officers, directors and employees and their attorneys and agents, and their predecessors, successors, insurers, assigns, heirs, executors and administrators (collectively referred to as the “Indemnitee”), from and against any and all claims, demands, causes of action, actions, judgments, liabilities, losses, costs and expenses, including attorneys’ fees and costs, as they occur, brought against, imposed upon, or incurred or suffered by, the Indemnitee which in any way relate to the failure of the Client to comply with the terms and conditions of this Agreement in proper handling of protected health information not caused by MSP’s gross negligence and/or due to the absence of any necessary BAA, or failing to notify MSP of the necessity of same.
5.3 Confidential Information of MSP shall include the Product(s) or Service(s), the terms and conditions of this Agreement and the Order Form, and documentation related to the Products and/or Services.
5.4 Confidential Information of each Party shall include the terms and conditions of this Agreement and all Order Form(s), as well as business and marketing plans, technology and technical information, product plans and designs, trade secrets, and business processes disclosed by such Party.
5.5 Confidential Information (other than Client Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
5.6 Protection of Confidential Information. The Receiving Party shall: (i) protect and safeguard the confidentiality of all Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care, (ii) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement or otherwise in any manner to the Disclosing Party’s detriment, and (iii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement.
5.7 Non-disclosure. Neither Party shall disclose the terms of this Agreement, any Order Form to any thirdparty other than its affiliates, legal counsel, and accountants without the other Party’s prior written consent.
5.8 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
5.9 If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
5.10 Return or Destruction of Confidential Information. Upon request, each Party agrees to promptly return the other Party’s Confidential Information in its possession, custody or control, or to certify the deletion or destruction of Confidential Information; provided, however, that the Receiving Party may retain a copy of any Confidential Information to the extent (a) required by applicable law or (b) it would be unreasonably burdensome to destroy (such as archived computer records). In the event that return or destruction of Confidential Information is unduly burdensome, or not feasible, the Parties shall extend the protections of this Agreement to the retained Confidential Information, and which protections and provisions shall survive the termination of this Agreement.